Chattisgarh High Court
Chhattisgarh State Electricity ... vs Maniprakash Patel on 16 June, 2022
Bench: Arup Kumar Goswami, Rajendra Chandra Singh Samant
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 116 of 2022
Chhattisgarh State Electricity Generation Co. through S.E. (HR Deptt)
Ofice at Danganiya, PS Danganiya, Raipur, CG State.
---Appellant
Versus
1. Maniprakash Patel S/o Ganpat Lal Patel, Aged about 37 years, R/o
village Pandripani, PO Godhi, Balco, Korba District CG State.
2. Chhattisgarh State Electricity Holding Co. Through CE (HR), Danganiya,
PS. Danganiya, Raipur, CG State.
3. The Project Officer, 1X500 MW, Dr. Shyama Prasad Mukherjee Thermal
Power Station, Extension-III, Korba (West) PS Korba, District Korba, CG
State.
----Respondents
AND WA No. 121 of 2022 Chhattisgarh State Power Holding Co. Ltd. Through Chief Engineer (HR Deptt) Vidyut Sewa Bhawan, Danganiya, PS Danganiya, Raipur, CG State.
---Appellant Versus
1. Chandrika Prasad Patel S/o Ganpat Lal Patel, Aged about 45 years, R/o village Pandripani, PO Godhi, Balco, Korba District CG State.
2. Chhattisgarh State Power Generation Company Ltd. Through CE (HRD) 2 Shed No. 3, Office at Danganiya, PS. Danganiya, Raipur, CG State.
3. The Chief Engineer (Generation) Hasdeo Power Station, CSPGCS Korba, West.
----Respondents
For Appellant : Mr. K.R.Nair and Dr. Veena
Nair, Advocates.
For Respondent No. 1 : Ms. Reena Singh, Advocate.
For Respondents No. 2&3 : None
Date of Hearing : 10.05.2022
Date of Judgment : 16.06.2022
Hon'ble Mr. Arup Kumar Goswami, Chief Justice Hon'ble Mr. Rajendra Chandra Singh Samant, Judge C A V Judgment Per Arup Kumar Goswami, Chief Justice Heard Mr. K.R.Nair and Dr. Veena Nair, learned counsel, appearing for the appellants. Also heard Ms. Reena Singh, learned counsel, appearing for the respondent No. 1 in both the writ appeals.
2. Writ Appeal No. 116/2022 is presented against an order dated 31.01.2022 passed by the learned Single Judge in WPS No. 5226/2012 and Writ Appeal No. 121/2022 is preferred against an order dated 31.01.2022 passed by the learned Single Judge in WPS No. 3757/2013.
3. The petitioner in both the writ petitions are brothers. The subject matter in both the writ petitions emanates from appointment orders issued to them. The petitioner in WPS No. 5226/2012 was not 3 allowed to join whereas the appointment of the petitioner in WPS No. 3757/2013 was cancelled after his joining. Since fundamentally common issue is arising in both the cases, these appeals are being disposed of by this common judgment.
4. Both the writ petitioners were appointed as Office Assistant Grade III (for short, OA-III) on probation for a period of two years. The petitioner in WPS No. 5226/2012 was not allowed to join as at the time of joining, he had submitted an affidavit stating that he was convicted alongwith others for the offences punishable under Sections 323/326/34 of the Indian Penal Code (for short, IPC) and was sentenced to undergo rigorous imprisonment for one month with fine of Rs. 500/- for the offence of Section 323/34 and to undergo rigorous imprisonment for two years with fine of Rs. 5000/- for the offence of Section 326/34 of the IPC.
5. The petitioner in WPS No. 3757/2013 had also submitted a similar affidavit.
6. Three brothers, namely, Mani Prakash Patel (petitioner in WPC No. 5226/2012) Chandrika Prasad Patel (petitioner in WPC No. 3757/2013) and Om Kishore Patel, owned a plot of land at village Pandripani. The land was acquired for the purpose of laying a pipe-line for 2X250 MW Dr. Shyama Prasad Mukherjee Thermal Power Station, Korba. It is the case of the petitioners that in view of the rehabilitation policy of the State Government, the family members or the owners of the land whose lands had been acquired, were entitled to employment in the industry for the benefit of which the land was acquired. 4
7. (i) The case of the petitioner in WPS No. 5226/2012 is that following that policy, an appointment order dated 10.10.2011 was issued appointing him to the post of OA-III and posting him in the office of the Chief Engineer (Human Resources) CSPGCL. Thereafter, the respondent No. 2, vide order dated 24.10.2011 posted the petitioner in the office of Project Manager, 1X500 MW, Korba (West), Extension Project, Korba, and in compliance of the orders dated 10.10.2011 and 24.10.2011, the petitioner reported for joining in the office of respondent No. 3 on 08.11.2011 and had submitted attestation form, declaration form, affidavit as required for character verification, medical certificate and other necessary documents. In the attestation form, he had mentioned that he was convicted by order dated 25.03.2003 under Sections 323/326/34 IPC and that an appeal, being Criminal Appeal No. 464/2003, is pending before this Court. By letter dated 15.11.2022, the respondent No. 3 informed the petitioner that his joining cannot be accepted and that necessary instructions had been sought for.
(ii) It is pleaded that his brother, namely, Chandrika Prasad Patel (petitioner in WPS No. 3757/2013), who was also given similar appointment by an order dated 31.07.2012, was posted in the office of Chief Engineer (Production), Hasdeo Thermal Power Station, CGSPCL, Korba West. He was subsequently posted by an order dated 14.08.2012 in the office of Superintending Engineer, Korba West. The joining report of the brother was accepted and he was allowed to discharge his duties.
(iii) Prayer was made seeking a direction to the respondent authorities to accept his joining and to allow him to work in the post of 5 OA-III as per the appointment order dated 10.10.2011 and to maintain his seniority w.e.f. 08.11.2011.
8.(i) While the basic facts in WPS No.3757/2013 are as stated in WPS No. 5226/2012, the case of the petitioner in WPS No. 3757/2013 is that he had submitted joining letter on 13.08.2012 and in the attestation form, which was submitted along with the medical certificate and other necessary documents, he had stated about his conviction under Sections 324/326/34 IPC. It is stated that he was allowed to join after he had made full disclosure.
(ii) As his brother had filed writ petition being WPS No. 5226/2012, as a counter-blast, a show cause notice dated 21.02.2013 was issued to him asking for an explanation as to why his appointment to the post of OA-III shall not be cancelled. He replied to the said show cause notice on 27.02.2013 stating that he had not suppressed any fact regarding registration of a criminal case and conviction therein. It is pleaded that without considering the reply, the order dated 07.10.2013 was passed cancelling his appointment to the post of OA-III.
(iii) It is in that background, prayer was made to set aside the order dated 07.10.2013 and to reinstate him to the post of OA-III with all consequential benefits.
9. In paragraph 2.1 of the reply affidavit filed in WPS No. 5226/2012, there is a categorical statement that the petitioner was offered the post of OA-III on probation for a period of two years in lieu of acquisition of land made for public purpose. In the said writ petition, a 6 stand is taken that the employer has a right to refuse joining of an appointee because of his conviction in a criminal case and accordingly joining report of the petitioner was rightly refused because of his conviction. It is pleaded that no right had accrued to the petitioner for allowing his brother to join mistakenly, for which show-cause notice was already issued for cancellation of his appointment.
10. In the reply filed in WPS No. 3757/2013, it is stated that the petitioner had manipulated the joining report in collaboration with the dealing clerk, who did not bring to the notice of the authorities that the appointee was convicted in a criminal case and was thus not entitled to join as OA-III. When it came to the notice of the respondents that the joining report of his brother, namely, Mani Prakash Patel (petitioner in WPS No. 5226/2012) was refused, the appointment order of the petitioner came to be cancelled after issuing a show cause notice and inviting explanation. It is also stated that a letter was issued to the concerned officer of the appellant for negligence in allowing the petitioner to join duties with a warning that repetition of such incident in future would entail disciplinary action against him.
11. The learned Single Judge, in WPS No. 5226/2012, held that the petitioner had not suppressed any material fact and had truthfully declared all relevant information. The learned Single Judge observed that before refusing the petitioner to join, the respondent authorities should have arrived at a conclusion that the petitioner was not a fit person to be appointed, but no such exercise and/or assessment was made by the respondent authorities. The learned Single Judge further 7 noted that the criminal appeal being Criminal Appeal No. 464/2003 preferred by the petitioner and his brothers had been allowed and they had been acquitted of the charges by this Court on the ground that they had exercised the right of private defence under Section 101 of the IPC in connection with an incident that had occurred on 22.06.2000. Accordingly, it was held that the petitioner cannot be termed as a habitual offender or cannot be held to be unfit for his appointment in the post of OA-III. In the light of the above discussion, the writ petition was allowed and the respondent authorities were directed to allow joining of the petitioner forthwith alongwith other benefits like seniority, if any, as provided under the prevailing rules.
12. In WPS No. 3757/2013, a similar view as was taken in WPS No.5226/2012 was taken and while allowing the writ petition, respondent authorities were directed to reinstate the petitioner as OA-III forthwith alongwith consequential benefits, if any, as provided under the rules.
13. The learned Single Judge, in both the cases, had relied on a decision of the Hon'ble Supreme Court in Daya Shankar Yadav v. Union of India & Others, reported in (2010) 14 SCC 103 and in Avtar Singh v. Union of India & Others, reported in AIR 2016 SC 3598.
14. Mr. K.R.Nair, learned counsel for the appellants submits that as at the relevant point of time when the petitioner in WPS No. 5226/2012 reported for duty, he was a convicted person, he was not eligible or suitable for appointment to the post and in such circumstance, the learned Single Judge committed illegality in holding that there was no consideration by the appellants as to whether the petitioner was not a fit 8 person to be appointed inasmuch as any further deliberation would have been a futile exercise. He submits that though the petitioner in WPS No. 3757/2013 was allowed to join, such joining came to be allowed because of the negligence of the official concerned. He should also not have been allowed to join because of his conviction and once the fact of his conviction came to light, necessary steps were taken to cancel the appointment on the ground of his conviction and the order of cancellation was passed after giving opportunity of hearing to the petitioner. It is submitted that, in any view of the matter, the direction of the learned Single Judge to reinstate/appoint the petitioners with benefits like seniority is wholly uncalled for.
15. Ms. Reena Singh, learned counsel, appearing for the respondent No. 1-writ petitioners in both the cases, relies on the judgment/order of the learned Single Judge. She further places reliance on the decisions rendered by the Hon'ble Supreme Court in Umesh Chandra Yadav v. The Inspector General & Chief Security Commissioner, RPF, Northern Railway, New Delhi & Others, reported in (2022) LiveLaw (SC) 300, Raj Narain v. Union of India & Others, (Civil Appeal No. 3339/2019, decided on 01.04.2019), Babu Lal v. State of Haryana, reported in 1991 CJ(SC) 58, and a decision rendered by a learned Single Judge of this Court in Smt. Sadhna Bai v. State of Chhattisgarh & Others (WP(S) No. 1762/2014, decided on 21.01.2016).
16. It is an undisputed fact that both the petitioners were offered appointment in view of the rehabilitation policy of the State Government 9 as their land had been acquired for public purpose. It is also true that in Sessions Trial No. 354/2000, by judgment dated 25.03.2003, they were convicted for the offence punishable under Sections 323/34 IPC for one month and for offence under Section 326/34 IPC for two years and that their appeal against the said judgment of conviction and order of sentence, was pending consideration before this Court. Thus, on the date when the petitioner in WPS No. 5226/2012 was refused joining and when the petitioner in WPS No. 3757/2013 was allowed to join, they were convicted persons. While the petitioner in WPS No. 5226/2012 was refused joining on the ground of being a convicted person, the stand of the appellant is that the petitioner in WPS No. 3757/2013 was mistakenly allowed to join because of the negligence of the officer concerned of the appellant as the factum of his conviction was not brought to the notice of the competent authority and later on, when this aspect came to the light, after issuance of notice and inviting explanation, appointment was cancelled.
17. The Hon'ble Supreme Court, in Daya Shankar Yadav (supra), observed as under:
"15. When an employee or a prospective employee declares in a verification form, answers to the queries relating to character and antecedents, the verification thereof can therefore lead to any of the following consequences:
(a) If the declarant has answered the questions in the affirmative and furnished the details of any criminal 10 case (wherein he was convicted or acquitted by giving benefit of doubt for want of evidence), the employer may refuse to offer him employment (or if already employed on probation, discharge him from service), if he is found to be unfit having regard to the nature and gravity of the offence/crime in which he was involved.
(b) On the other hand, if the employer finds that the criminal case disclosed by the declarant related to the offences which were technical, or of a nature that would not affect the declarant's fitness for employment , or where the declarant had been honourably acquitted and exonerated, the employer may ignore the fact that the declarant had been prosecuted in a criminal case and proceed to appoint him or continue him in employment."
18. A perusal of the above would go to show that an employer may refuse to offer employment or if already employed on probation, discharge him from service, if he was found to be unfit having regard to the nature and gravity of the offence/crime in which he was involved.
19. In Avtar Singh (supra), at paragraphs 22 and 38, the Hon'ble Supreme Court laid down as follows:
"22. ....... In case the employer comes to the conclusion that suppression is immaterial and even if facts would have been disclosed would not have affected adversely fitness of an incumbent, for reasons to be recorded, it has 11 power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However, same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment incumbent may be appointed or continued in service. "38. We have noticed various decisions and tried to 12 explain and reconcile them as far as possible. In view of the aforesaid discussion, we summarise our conclusion thus:
38.1. Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
38.2 While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, it any, while giving such information.
38.3 The employer shall take into consideration the government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the 13 following recourse appropriate to the case may be adopted:
38.4.1 In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
38.4.3 If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee. 38.5 In a case where the employee has made declaration truthfully of a concluded criminal 14 case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
38.6 In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
38.7 In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper. 38.8 If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime. 38.9 In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of 15 termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
38.10 For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness.
However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
38.11 Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him. "
20. Thus, it is seen that even if disclosure of involvement on conviction in a criminal case has been made truthfully, the employer of the person seeking appointment has the right to consider fitness for appointment and while doing so, the effect of conviction and the nature of offence have to be considered. The employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate and where a conviction has been recorded in a case which is not trivial in 16 nature, employer may cancel candidature or terminate services of the employee. Even if acquittal has been made, employer may consider whether acquittal is honourable or was as a result of grant of benefit of doubt on technical reasons. In case employer comes to the conclusion that conviction or ground of acquittal in criminal case would not affect fitness for appointment, he may be appointed or continued in service.
21. In Babu Lal (supra), the Hon'ble Supreme Cout held that a person who was suspended on the ground of pendency of a criminal proceeding, on being acquitted of the criminal charge is entitled to be reinstated in service. His acquittal from the criminal charge does not debar the authorities to initiate disciplinary proceedings and after giving an opportunity of hearing to the employee pass an order of termination on the basis of the terms and conditions of the order of appointment.
22. In Smt. Sadhna Bai (supra), the question that arose for consideration was whether the State Government was justified in impliedly excluding married daughter of the affected/displaced family from consideration for employment under the Chhattisgarh State Model Rehabilitation Policy, 2007, on the ground of her marriage. The aforesaid judgment has no application in the facts of the present case.
23. In Raj Narain (supra), the appellant had questioned the legality and validity of the judgment of the High Court by which payment of back wages was restricted only to the period from the date of the order of his acquittal till the date of his reinstatement. The Hon'ble Supreme Court, while affirming the judgment of the High Court, had occasion to consider its two earlier decisions in the cases of Ranchhodji Chaturji Thakore v. 17 Superintendent Engineer, Gujarat Electricity Board & Another , reported in (1996) 11 SCC 603, and Union of India & Others v. Jaipal Singh, reported in (2004) 1 SCC 121. The Hon'ble Supreme Court observed as follows:
"6. The decision of Ranchhodji Chaturji Thakore (supra) was followed by this Court in Union of India and Others v. Jaipal Singh (supra) to refuse back wages to an employee who was initially convicted for an offence under Section 302 read with Section 34 IPC and later acquitted by the High Court in a criminal appeal. While refusing to grant relief to the Petitioner therein, this Court held that subsequent acquittal would not entitle an employee to seek back wages. However, this Court was of the opinion that if the prosecution is launched at the behest of the department and the employee is acquitted, different considerations may arise. The learned counsel for the Appellant endeavored to distinguish the prosecution launched by the police for involvement of an employee in a criminal case and the criminal proceedings initiated at the behest of the employer. The observation made in the judgment in Union of India and Others v. Jaipal Singh (supra) has to be understood in a manner in which the department would become liable for back wages in the event of a finding that the initiation of the criminal proceedings was mala fide or with vexatious intent. In all 18 other cases, we do not see any difference between initiation of the criminal proceedings by the department vis-a-vis a criminal case lodged by the police. For example, if an employee is involved in embezzlement of funds or is found indulging in demand and acceptance of illegal gratification, the employer cannot be mulcted with full back wages on the acquittal of the person by a criminal Court, unless it is found that the prosecution is malicious."
24. In Umesh Chandra Yadav (supra), the Hon'ble Supreme Court at paragraph 15 observed as under:
"15. This cannot be disputed that the candidate who intend to participate in the selection process is required to furnish correct information relating to his character and antecedents in the verification/ attestation form before or after his induction into service. At the same time, it is also true that the person who has suppressed the material information, cannot claim unfettered right of seeking appointment or continuity in service but, at the same time, he has a right not to be dealt with arbitrarily and power has to be exercised in reasonable manner with objectivity having due regard to the facts of case on hand. The yardstick which has to be applied always depends upon the nature of post, nature of duties, impact of suppression on suitability has to be considered by the 19 competent authority considering post/nature of duties/services and power has to be exercised on due diligence of various aspects at the given time and no hard and fast rule of thumb can be laid down in this regard."
25. Conviction in a case for the offences punishable under Section 323/326/34 IPC cannot be considered to be trivial in nature and therefore, denial of joining or otherwise denial of appointment on the ground of conviction may not be held to be unjustified. To that extent, we are unable to concur with the finding of the learned Single Judge that no assessment was made by the respondent authorities before refusing the petitioner in WPS No. 5226/2012 to join and cancelling the appointment of the petitioner in WPS No. 3757/2013 after the fact of his conviction came to light. However, indisputably, both the petitioners were acquitted by this Court by the judgment and order dated 10.01.2020. This Court, while acquitting the petitioner, observed that causing injury in defending right of own body and the body of any other person is exempted as per Section 101 of IPC and therefore, no one can be convicted for acting in self defence.
26. On acquittal of the petitioners on the ground, as noticed above, whatever disability the petitioners had in securing public employment, had ceased to exist. At the cost of repetition, it is to be remembered that employment was offered to the petitioners as per the existing policy for offering employment to the persons whose lands were acquired and therefore, there cannot be any justification at this point of time for not honouring the appointment orders given to the petitioners. 20
27. Accordingly, we hold that the petitioners shall be allowed to join their duties within a period of 10 days from today. In the attending facts and circumstances, we are of the opinion that the petitioners would be entitled to all benefits from the date of their joining pursuant to the present order.
28. The orders of the learned Single Judge are modified to that extent. The writ appeals are allowed in part.
1 Sd/- Sd/-
(Arup Kumar Goswami) (Rajendra Chandra Singh Samant)
CHIEF JUSTICE JUDGE
Amit/Hem